Minor of Martin, In re

Decision Date17 March 1977
Citation51 Ohio App.2d 21,365 N.E.2d 892
Parties, 5 O.O.3d 141 In re MINOR OF MARTIN et al.
CourtOhio Court of Appeals

Syllabus by the Court

1. Juvenile court proceedings under R.C. 3111.17 are conducted to determine a "reputed father" for the purpose of obtaining support of a child and payment for medical expenses. A determination of a "reputed father" under R.C. 3111.17 does not convert that finding into a finding of a "natural father" under R.C. 2105.18. Nor does such a determination give the mother authority either as agent for the father or by operation of law to file an application for legitimation under R.C. 2105.18 and acknowledge that the alleged father is the natural father of the child.

2. An illegitimate child may be legitimated if the natural father of the child files an application in the appropriate probate court acknowledging that the child is his and the mother of the child consents to the legitimation. If the probate court is satisfied that the applicant is the natural father and that establishment of this relationship is for the best interest of the child, the probate court shall enter the finding of fact upon its journal and thereafter the child is the child of the applicant as though born to him in lawful wedlock.

In addition, the Equal Protection Clauses of the Fourteenth Amendment of the United States Constitution and Section 2, Article I of the Ohio Constitution mandate that R.C. 2105.18, providing for legitimation of illegitimate children, afford every illegitimate child the opportunity to become legitimated by filing an application for legitimation and by proving by clear and convincing evidence the identity of the child's natural father. If the probate court is satisfied that the person named in the application for legitimation is the child's natural father and that establishment of this relationship is for the best interest of the child, the court shall enter that finding of fact upon its journal and thereafter the child is the child of the person named in the application as though born to him in lawful wedlock.

Engene Sidney Bayer, Cleveland, for appellant Ge Ge Lou Martin.

KRENZLER, Judge.

The appellant, Ge Ge Martin (a/k/a Ge Ge De Jesus), filed a complaint in the Juvenile Court of Cuyahoga County, alleging one Angelo L. Ortiz to be the reputed father of her child, Julia Louise De Jesus, born on May 24, 1971. At the time of the child's birth, the appellant was married to one Reuben De Jesus whose name appears on the birth certificate as the father of the child. Subsequent to the child's birth, the appellant and Reuben De Jesus were divorced.

The case was tried before a jury on October 20, 1972, and a verdict was returned against Angelo L. Ortiz who was ordered to make payments for the support of Julia and to pay past care and maternity expenses of the appellant.

The appellant then requested the Department of Health of the state of Ohio to change the birth certificate of the child to show Angelo L. Ortiz as the natural father. Her request was denied on the basis that the requirements of R.C. 2105.18, 1 the legitimation statute, had not been satisfied. The appellant next brought an action in the United States District Court for the Northern District of Ohio seeking to have R.C. 2105.18 declared unconstitutional. The District Court dismissed the case on the basis that the appellant had not attempted to file an application in probate court for legitimation under R.C. 2105.18.

The appellant then filed an application in the Probate Court of Cuyahoga County on October 10, 1973, to legitimate Julia Louise De Jesus. On January 16, 1974, a referee in the probate court, after conducting a hearing, denied the appellant's application holding that there had been no compliance with R.C. 2105.18. The referee stated that R.C. 2105.18 provides that an illegitimate child may be legitimated only by the intermarriage of the parents subsequent to the birth of the child or by the filing of an application in probate court by the natural father acknowledging such child as his. The appellant filed objections to the report of the referee denying the appellant's application to legitimize Julia. On June 24, 1975, the probate court, after a hearing, overruled the appellant's objections and sustained the report of the referee. On July 24, 1975, the appellant filed a notice of appeal to this court assigning as error:

"The Probate Court erred in denying appellant's application for legitimization of the minor child of the parties."

Once again, this court is called upon to decide a case in which discrimination is alleged against an illegitimate child. As stated in Green v. Woodard (1974), 40 Ohio App.2d 101, 103, 318 N.E.2d 397, 400:

"Much has been written concerning the discriminatory practices and treatment of illegitimate children under feudal and common law. In the past, illegitimate children were treated as "nothing" and reasons given for such discrimination were to: (1) preserve feudal tenure; (2) discourage illegitimate relationship; (3) avoid artificial presumptions of intent; (4) encourage legitimate family relationships; (5) protect the rights of legitimate children.

"Application of these theories has only resulted in discrimination against illegitimates and has not reduced illegitimate births, but to the contrary there has been an increase in illegitimate births. Rather than again discuss in detail these past discriminatory practices, reference is made to Judge Leo Jackson's opinion and also the concurring opinion in Butcher v. Pollard (1972), 32 Ohio App.2d 1, 288 N.E.2d 204. Also see Chief Justice O'Neill's dissenting opinion in Baston v. Sears (1968), 15 Ohio St.2d 166, 169, 239 N.E.2d 62 and Justice Schneider's discussion in Franklin v. Julian (1972), 30 Ohio St.2d 228, 283 N.E.2d 813." (Footnote omitted.)

The legislatures and courts recently have been reexamining the law regarding illegitimate children. Substantial changes in attitude have taken place. The current trend is to recognize illegitimate children as being the same as legitimate children. This has been accomplished by legislative enactments recognizing rights of illegitimate children and also by court interpretation of statutes. 2

In the present case, we are concerned with the Ohio legitimation statute, R.C. 2105.18, which provides in relevant part that the natural father of an illegitimate child may file an application in probate court acknowledging that the child is his. Upon consent of the mother and satisfaction by the probate court that the applicant is the natural father and that the establishment of the relationship is for the best interests of the child, the probate court shall enter the finding of fact upon its journal. Thereafter, the child is the child of the applicant as though born to him in lawful wedlock.

The principal question to be determined in this case is whether the foregoing statute is to be interpreted narrowly as decided by the probate court or whether the Equal Protection Clauses of the Fourteenth Amendment of the United States Constitution and Section 2, Article I of the Ohio Constitution require a broader interpretation which would give all illegitimate children an opportunity to be legitimated either upon application and acknowledgment by the natural father or upon application by the child and proof of the identity of the natural father in a court of law.

R.C. 2105.18 is subject to at least three possible interpretations. These are:

(1) The basis of the probate court's decision is that legitimation of an illegitimate child is a matter for the state legislature which decided its method and manner when it enacted R.C. 2105.18. Legitimation under R.C. 2105.18 can be accomplished in two ways: by intermarriage of the natural parents before or after the birth of the child or by an application by the natural father acknowledging that he is the father, coupled with the consent of the mother, and approval by the probate court. These procedural steps are mandatory and unless accomplished, a child cannot be legitimated under R.C. 2105.18.

(2) Appellant's argument is that whenever a man is determined to be a "reputed father" of the child in a bastardy proceeding in the juvenile court under R.C. 3111.17 the mother is given the authority to make the application required by R.C. 2105.18 on behalf of the natural father as his agent. This gives the probate court jurisdiction and authority to entertain the application to legitimate the child under R.C. 2105.18.

(3) A third possible interpretation involves a constitutional issue. Since the Ohio Legislature enacted the legitimation statute, R.C. 2105.18, providing that an illegitimate child may be legitimated, all illegitimate children must be afforded an opportunity to be legitimated. This is mandated by the Equal Protection Clauses of the Fourteenth Amendment of the United States Constitution and Section 2, Article I of the Ohio Constitution. Legitimation cannot be limited to cases wherein the father first acknowledges that he is the natural father of the child.

It is our view that the appellant's argument, the second alternative discussed above, that a juvenile court determination that a man is a "reputed father" under R.C. 3111.17 gives her authority to make application on his behalf and acknowledge that he is the "natural father" under R.C. 2105.18, is not valid.

Juvenile court proceedings under R.C. 3111.17 are conducted only to determine a "reputed father" for the purpose of obtaining support of the child and the payment of medical expenses. There is nothing in R.C. 3111.17 that would convert a "reputed father" into a "natural father" for legitimation purposes under R.C. 2105.18. The legislature chose to distinguish between a "reputed father" for the purpose of support under R.C. 3111.17 and a "natural father" for the purpose of legitimation under R.C. 2105.18. Therefore, a determination of a "rep...

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