Lemley v. Kaiser

• Decision Date: 24 August 1983
• Docket Number: No. 82-1348,82-1348
• Citation: 452 N.E.2d 1304,6 OBR 324,6 Ohio St.3d 258
• Parties: , 6 O.B.R. 324 LEMLEY et al., Appellees, v. KAISER, et al., Appellants.
• Court: Ohio Supreme Court

Page 258

6 Ohio St.3d 258

452 N.E.2d 1304, 6 O.B.R. 324

LEMLEY et al., Appellees, v. KAISER, et al., Appellants.

No. 82-1348.

Supreme Court of Ohio.

Aug. 24, 1983.

Syllabus by the Court

1. R.C. 5103.16, the procedure for independently placing a child for adoption, is in derogation of the common law and must be strictly construed.

2. A writ of habeas corpus may properly issue, directing the return of a child to its parent, or, in the alternative, to reveal the location of the child to the juvenile court, to those respondents who are the last known persons to have knowledge of the whereabouts of the child and who facilitated the illegal custody resulting from the unlawful placement of such child with unknown custodians.

Tammy L. Lemley (hereinafter "appellee") and Bobby Lee Nash, Sr. (hereinafter "father") are the unwed parents of Bobby Lee Nash, Jr., a minor child, who was born on January 30, 1981. Some time during April 1981, the child's father consulted with attorneys J. Stewart Kaiser and John E. Hall (hereinafter "appellants"), a legal partnership, in Lawrence County, Ohio, concerning the possible placement and adoption of the child.

On May 5, 1981, the father, appellee and their child went to appellants' office for the dual purpose of executing documents which they had been advised were necessary for the prospective adoption and to deliver their son into the possession of appellants. At this meeting, appellee became upset at the thought of relinquishing her child; appellee left the office with her son and the child's father before executing any of the documents.

The next day, May 6, 1981, appellee, the father, and their son returned to appellants' office at which time appellee executed the documents which had been previously explained to her by attorney Kaiser as necessary for the adoption of her son. At this time, appellee and the father left their child at appellants' office. Later that same day, appellant Hall delivered the child to the allegedly prospective adoptive parent or parents, whose identity had not been disclosed to either appellee or the father.

At the time when appellee signed the necessary documents and relinquished possession of her child, appellee was only seventeen years of age. As a result, appellant Hall met with appellee in Huntington, West Virginia, on May 11, 1981, two days after appellee's eighteenth birthday, for the purpose of having appellee re-execute the necessary documents as an adult.

On May 18, 1981, appellee and the father again visited appellants' office seeking the return of their son. At this visit, attorney Kaiser informed appellee and the father that appellants would not assist them in obtaining the return of their son.

In June 1981, appellee ¹ instituted the instant habeas corpus action on behalf of her son, naming attorneys J. Stewart Kaiser and John E. Hall, together with Jane Doe, the unknown custodian of appellee's child, as respondents.

The habeas corpus petition was filed in the Court of Common Pleas of Lawrence County, Probate Juvenile Division. The juvenile court conducted an evidentiary hearing at which appellants testified, asserting the attorney-client privilege in refusing to disclose the name and address of the person or persons who had possession of the child.

The juvenile court issued a writ of habeas corpus to appellants ordering them to return the child to appellee or, in the alternative, to reveal the location of the child to the juvenile court.

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

Charles L. Burd, Chesapeake, for appellees.

J.B. Collier, Jr., Ironton, for appellants.

ALICE ROBIE RESNICK, Justice.

We are confronted with a factual milieu which forcefully suggests and overwhelmingly implies that appellants were active participants in the private, independent, and surreptitious placement for adoption of the minor child without the slightest regard for and in complete contravention of the applicable statutory guidelines for such independent placements. The record before us indicates that when testifying at the evidentiary hearing conducted by the juvenile court, appellants skillfully avoided admitting that which seemingly may not be denied. The record, however, is abundantly clear that the private, independent, and surreptitious placement of the minor child in the instant case was only accomplished through a total derogation of the law.

The procedure for independently placing a child for adoption is plainly and succinctly set forth in R.C. 5103.16, which provides in pertinent part:

"No child shall be placed or received for adoption or with intent to adopt unless placement is made by a county welfare department having a child welfare division, county children services board, the department of public welfare, an organization authorized to place children for adoption under a certificate of the department of public welfare, or custodians in a foreign state or country, or unless all of the following criteria are met:

"(A) Prior to the placement and receiving of the child, the parent or parents of the child have personally applied to, and appeared before, the probate court of the county in which the parent or parents reside, or in which the person seeking to adopt the child resides, for approval of the proposed placement specified in the application and have signed and filed with the court a written statement showing that the parent or parents are aware of their right to contest the decree of adoption subject to the limitations of section 3107.16 of the Revised Code;

"(B) The court, after an independent investigation of the proposed placement, conducted as provided in section 3107.12 of the Revised Code, and after completion of the investigation has determined that the proposed placement is in the best interests of the child;

"(C) The court has approved of record the proposed placement." (Emphasis added.)

Although R.C. 5103.16 is not part and parcel of the adoption statutes, it is in substance an adoption statute. As such, R.C. 5103.16 is necessarily in derogation of the common law and must be strictly construed. Campbell v. Musart Society (P.C.1956), 131 N.E.2d 279, 72 Ohio Law Abs. 46, 50; In re Wedl (P.C.1952), 114 N.E.2d 411, 65 Ohio Law Abs. 231, 236. See Anonymous v. Anonymous (1981), 108 Misc.2d 1098, 1102, 439 N.Y.S.2d 255. Further, because the provisions authorizing adoptions are purely statutory, strict compliance with them is necessary. In re Privette (1932), 45 Ohio App. 51, 52, 185 N.E. 435; Anonymous, supra. The intent of the legislature in enacting R.C. 5103.16 was to provide some measure of judicial control over the placement of children for adoption which is not conducted under the auspices of a statutorily recognized and authorized agency. That measure of judicial control is accomplished by having the parents of the child personally appear before the proper probate court for approval of the placement and adoption. In re Harshey (1974), 40 Ohio App.2d 157, 163, 318 N.E.2d 544 . " 'The integrity of this [statutory] process is an absolute necessity.' " In re Adoption of Daniel C. (1982), 115 Misc.2d 130, 453 N.Y.S.2d 572, 575. Otherwise, children could be sold to the highest bidder and shuffled around like objects on an auction block.

Appellants assert that they did not represent appellee or the father in this matter, even though appellee and the father approached appellants for their professional assistance in the placement of their son for adoption. The record does reveal, however, that appellants proceeded with the placement of the child knowing full well that neither of the child's parents had petitioned the probate court in the county where they resided or in the county where the allegedly prospective adoptive parent or parents resided ² for an independent placement of their son pursuant to R.C. 5103.16.

Further, appellants knew that a probate court had not made a determination that the placement was in the best interests of the child ³ and that no probate court had of record approved the proposed placement. ⁴ Even though appellee was a minor when she signed her original consent to the placement, surrender, and proposed adoption of her son, said consent would have been valid if it had been executed before the probate court judge or an authorized deputy or referee of the probate court as contemplated by statute. ⁵ See R.C. 5103.16. Assuming arguendo that appellants did not represent appellee and the father in the placement of their son, appellants nevertheless proceeded with and facilitated said placement in violation of R.C. 5103.16.

With this background, we now proceed to address appellants' arguments. Appellants contend in their first proposition of law that since it is unrefuted that they do not have nor did they have at the time the habeas corpus petition was filed, physical control or custody over the minor child, it was error for the court to direct the issuance of the writ against them.

Initially, we recognize that a petition for writ of habeas corpus shall specify, inter alia, the name of the person illegally confined and in whose behalf the petition is brought, the name of the person who is confining the individual in whose behalf the petition is brought, and if known, the place where that individual is so illegally restrained or confined. R.C. 2725.04. As a general rule, the respondent in a habeas corpus petition is the person who holds custody and is able to physically produce the person who is allegedly being illegally restrained. See Santa Clara Pueblo v. Martinez (1978), 436 U.S. 49, 59, 98 S.Ct. 1670, 1677, 56 L.Ed.2d 106; Hancock v. State (Fla.App.1980), 386 So.2d 613, 614; Peyton v. Nord (1968), 78 N.M. 717, 437 P.2d 716; In re Striker (1956), 101 Ohio App. 455, 140 N.E.2d 620. In order for the writ to properly issue, it is essential that the petition specify the...